Ex Parte Das et alDownload PDFPatent Trial and Appeal BoardJan 23, 201712497433 (P.T.A.B. Jan. 23, 2017) Copy Citation United States Patent and Trademark Office UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O.Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 12/497,433 07/02/2009 Abhik Das 82249073 6469 56436 7590 01/25/2017 Hewlett Packard Enterprise 3404 E. Harmony Road Mail Stop 79 Fort Collins, CO 80528 EXAMINER VO, CECILE H ART UNIT PAPER NUMBER 2153 NOTIFICATION DATE DELIVERY MODE 01/25/2017 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): hpe.ip.mail@hpe.com chris. mania @ hpe. com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE PATENT TRIAL AND APPEAL BOARD Ex parte ABHIK DAS and RAJESH ANANTHA KRISHNAIYER Appeal 2016-002603 Application 12/497,4331 Technology Center 2100 Before CARLA M. KRIVAK, HUNG H. BUI, and AARON W. MOORE, Administrative Patent Judges. BUI, Administrative Patent Judge. DECISION ON APPEAL Appellants seek our review under 35 U.S.C. § 134(a) of the Examiner’s Final Office Action rejecting claims 1, 2, 4, 6—11, 13—15, and 17—24, which are all the claims pending on appeal. We have jurisdiction under 35 U.S.C. § 6(b). We AFFIRM.2 1 According to Appellants, the real party in interest is Hewlett-Packard Development Company, LP. App. Br. 2. 2 Our Decision refers to Appellants’ Appeal Brief filed June 1, 2015 (“App. Br.”); Reply Brief filed January 8, 2016 (“Reply Br.”); Examiner’s Answer mailed November 12, 2015 (“Ans.”); Final Office Action mailed Mar. 20, 2015 (“Final Act.”); and original Specification filed July 2, 2009 (“Spec.”). Appeal 2016-002603 Application 12/497,433 STATEMENT OF THE CASE Appellants’ invention relates to a method of selective replication in a storage area network (SAN) to facilitate data backup and archiving operations. Spec. H 3, 25. Claims 1,7, and 14 are independent. Claim 1 is illustrative of Appellants’ invention and is reproduced below with disputed limitations in italics: 1. A method, comprising: receiving user input distinguishing data for which regular backup is desired from data for which regular backup is not desired, said user input specifying any of specific files, directories and file types for replication; identifying a first range of data blocks in a storage device array corresponding to data files selected for replication based on said user input, said first range of data blocks being managed by a source host device; mapping, with at least one of a controller of said storage device array and a controller of a destination host device, said first range of data blocks to a second range of data blocks in said storage device array managed by said destination host device; copying, with said storage device array controller, said data blocks from said first range that contain said data files selected for replication to said corresponding data blocks in said second range; and removing a number of the copied data blocks representing data not selected for replication while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range. App. Br. 22 (Claims App.). Examiner’s Rejection and References Claims 1, 2, 4, 6—11, 13—15, and 17—24 stand rejected under 35 U.S.C. § 103(a) as being unpatentable over Haselton et al. (US 2007/0027935 Al; 2 Appeal 2016-002603 Application 12/497,433 published Feb. 1, 2007; “Haselton”), Burton et al. (US 7,809,917 B2; issued Oct. 5, 2010; “Burton”), Nakajima et al. (US 2010/0049916 Al; published Feb. 25, 2010; “Nakajima”), and Komarov et al. (US 2008/0082593 Al; published Apr. 3, 2008; “Komarov”). Final Act. 2—17. ISSUE Based on Appellants’ arguments, the dispositive issue presented on appeal is whether the prior art teaches or suggests several limitations of independent claims 1, 7, and 14. App. Br. 11—20; Reply Br. 4—16. ANALYSIS In support of the rejection of claim 1, the Examiner finds the combination of Haselton, Burton, Nakajima, and Komarov teaches or suggests Appellants’ claimed method of selective replication in a storage device array comprising ah claim limitations. Final Act. 3—7 (citing Haselton || 24—26; Burton 11: 44^45, Fig. 7; Nakajima Tflf 14, 145, Figs. 32— 33; Komarov Tflf 10, 80). In particular, to support the conclusion of obviousness, the Examiner finds Komarov teaches the disputed limitation “removing a number of the copied data blocks representing data not selected for replication while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range” in the context of Komarov’s online backup procedure including (1) blocks that constitute files selected for backup, and (2) other blocks that constitute files not selected for backup and are removed from the shrinkable snapshot, along with Komarov’s disclosure that “updated data are placed to a new location 3 Appeal 2016-002603 Application 12/497,433 (e.g. are copied to an auxiliary storage) while original data remain intact on a storage.” Final Act. 6—7 (citing Komarov H 10, 80). Appellants only dispute the Examiner’s factual findings regarding Komarov. Appellants acknowledge Komarov teaches snapshot-based online backup operations, but argue Komarov’s “blocks that constitute files selected for backup are simply copied to another data storage device without consideration of offsets with those data blocks copied” and, as such, Komarov does not teach or suggest “maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range,” as recited in claim 1. App. Br. 11—14 (emphasis added). Accordingly, Appellants argue because Komarov does not teach or suggest “removing a number of the copied data blocks representing data not selected for replication while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range,” there is no basis to support the conclusion of obviousness. App. Br. 14. We do not find Appellants’ arguments persuasive. At the outset, we note there is no requirement that the prior art must use the same words to describe a claim element in order to be deemed as teaching or disclosing that claim element. “[T]he reference need not satisfy an ipsissimis verbis test,” i.e., identity of terminology is not required. In re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). Prior art references must be “considered together with the knowledge of one of ordinary skill in the pertinent art.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir. 1994). As such, it is proper to take into account not only the literal and specific teachings of the reference, but also the inferences which one skilled in the art would reasonably be expected to draw therefrom. In re Preda, 401 F.2d 825, 826 (CCPA 1968). 4 Appeal 2016-002603 Application 12/497,433 The term “original offset positions” recited in claim 1 is not defined in Appellants’ Specification. Nor is the disputed limitation of Appellants’ claim 1: “removing a number of the copied data blocks representing data not selected for replication while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range” described anywhere in Appellants’ Specification. Rather, the term “offset positions” is described in the context of mapping of files selected for replication at a target location (destination), step #3 shown in Figure 2, as reproduced below with additional markings for illustration. SELECTIVE EESIKIATSON: AS AES. 5 Appeal 2016-002603 Application 12/497,433 As shown in Figure 2, Appellants’ selective replication is accomplished through four (4) steps. Spec. 125. First, a user or system administrator selects files, directories, and/or file types in a volume to be backed-up at block 202. Spec. 126. Second, client software 106-1 at source 104, shown in Figure 1, queries the volume to be backed-up (replicated) to determine the range of blocks at source 104 that contains data for the files selected for backup at block 204. Spec. 127. Third, a replica containing only blocks required to store files selected for backup is created by mapping data to be replicated from the range of blocks managed at source 104 to a range of blocks managed at destination 110, via either (1) a “firmware- based” approach or (2) a “client-based” approach, and is then presented to destination 110 at block 206. Spec. 128. Lastly, after mapping, via either (1) a “firmware-based” approach or (2) a “client-based” approach, client software 106-2 at destination 110, shown in Figure 1, performs cleanup of the replica, including deletion of unwanted blocks containing files not selected for replication at block 212. Spec. 30, 48. According to Appellants’ Specification, only the “firmware-based” approach to mapping requires: [t]he blocks in the selected range which contain data relating to files which have been selected are copied (step 706) to create the replica. Unreplicated blocks in the selected range are still allocated to destination range of blocks in the storage array to maintain (step 708) continuity in data offset positions. The replica may then be presented to a destination host. Spec. 146 (emphasis added). In other words, when the “firmware-based” approach to mapping is used, blocks containing files not selected for replication 6 Appeal 2016-002603 Application 12/497,433 will not be written to at this time, but may be reserved for other replication processes that may replicate the unreplicated blocks (606) of the source volume (108-1, Fig. 1) at a later time. Furthermore, to maintain file consistency, the block may remain in the same offset position. It will be apparent to those skilled in the relevant art that this is done to satisfy the methods of which storage is managed. Spec. 144 (emphasis added). In contrast to the “firmware-based” approach to mapping, the “client- based” approach to mapping requires that “all blocks may be replicated and [any] unwanted blocks removed in the cleanup process,” i.e., “the cleanup process may include deletion of unwanted files by destination client software (106-2, Fig. 1).” Spec. 147. In other words, when the “client- based” approach to mapping is used, there is no need to determine or maintain any type of data offset positions. Instead, all blocks are replicated from source 104 to destination 110, shown in Figure 1, and only then are “unwanted blocks” removed at destination 110 during the cleanup process. Spec. 147. Based on Appellants’ Specification, we find the term “original offset positions of data blocks” as recited in Appellants’ claim 1 can only be understood in the context of the “firmware-based” approach to mapping, shown in Figure 2, and must be “considered together with the knowledge of one of ordinary skill in the pertinent art.” In re Paulsen, 30 F.3d at 1480. In that context, “unreplicated blocks in the selected range are still allocated to destination range of blocks in the storage array to maintain (step 708) continuity in data offset positions” (Spec. 146, emphasis added) but “will not be written [into destination 100, shown in Figure 1]” and “may be 7 Appeal 2016-002603 Application 12/497,433 reserved for other replication processes that may replicate the unreplicated blocks (606) of the source volume (108-1, Fig. 1) at a later time.” (Spec. 144, emphasis added). However, Appellants’ Specification is silent regarding how these unwanted or unreplicated blocks can be written into a replica. Nevertheless, we accept that those skilled in the art would understand how the “storage is managed” as expressly acknowledged by Appellants’ Specification. Spec. 144. Regardless, Appellants’ “cleanup process” (where unwanted blocks containing files not selected for replication are deleted) is separate and is done only after mapping, via either (1) a “firmware-based” approach or (2) a “client-based” approach, including any reference to the “original offset positions of [] data blocks.” As such, we find Appellants’ Specification does not teach or support the teaching that “copied data blocks representing data not selected for replication” can be removed or deleted “while [at the same time] maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range” in the manner recited in Appellants’ claim 1. To the extent the disputed limitation of Appellants’ claim 1 can be understood in the context of Appellants’ Specification, we find a skilled artisan would understand that Komarov teaches the disputed limitation in the context of Komarov’s online backup procedure including (1) blocks that constitute files selected for backup, and (2) other blocks that constitute files not selected for backup and are removed from the shrinkable snapshot. Final Act. 6—7. Further, Komarov’s disclosure that “updated data are placed to a new location (e.g., are copied to an auxiliary storage) while original data 8 Appeal 2016-002603 Application 12/497,433 remain intact on a storage,” i.e., maintaining original offset positions of data blocks. Id. (citing Komarov 10, 80). As correctly recognized by the Examiner, “maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range” is understood by those skilled the art when unwanted or unreplicated blocks are allocated to a destination range of blocks in a storage array. Ans. 3. As described by Komarov, [u]pon successful snapshot creation the backup utility 200 analyzes data allocation on all volumes included to the snapshot and compiles the backup-list 205 from blocks that constitute files selected for backup. Other blocks of the snapshot constitute a collection of unnecessary blocks. Unnecessary blocks are removed from the shrinkable snapshot 220.” Komarov 1 80. Komarov’s analysis of data allocation on all volumes and removal of unnecessary blocks appears to support the Examiner’s finding that Komarov teaches the disputed limitation “removing a number of the copied data blocks representing data not selected for replication while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range,” as recited in claim 1. In the Reply, Appellants argue the Examiner’s assertion regarding “maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range” as being well-known by those skilled in the art contains a new grounds of rejection. Reply Br. 6—7. To the extent Appellants seek procedural relief (i.e., relief other than reversal on the substance of the rejection), such relief is only available by a timely petition under 37 C.F.R. § 1.181 (see Manual of Patent Examining Procedure (MPEP) §§ 1002 and 1201) and is not within the jurisdiction of 9 Appeal 2016-002603 Application 12/497,433 the Board. In re Mindick, 371 F.2d 892, 894 (CCPA 1967). Records from the USPTO’s Patent Application Locating and Monitoring electronic database (PALM) contain no evidence that Appellants filed a petition under 37 C.F.R. § 1.181 to challenge the Examiner’s allegedly untimely introduction of the new grounds of rejection. Accordingly, we treat any potential procedural challenge as waived (see MPEP § 1207.03(IV)), and do not address Appellants’ arguments regarding this petitionable matter. For the reasons set forth above, Appellants have not demonstrated Examiner error. As such, we sustain the Examiner’s obviousness rejection of claim 1 and its dependent claims 2 and 4, which Appellants do not argue separately. App. Br. 14. Independent claim 7 is similar to claim 1, except for the limitation that “a controller of said storage array . . . deallocates a number of the copied data blocks allocated to unused data blocks in said second range while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range” (emphasis added). Appellants present the same arguments presented against claim 1, i.e., Komarov’s “blocks that constitute files selected for backup are simply copied to another data storage device without consideration of offsets with those data blocks copied.” That is, Komarov does not teach or suggest “de- allocat[ing] a number of the copied data blocks allocated to unused data blocks in said second range while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range,” as recited in claim 7. App. Br. 14—16 (emphasis added). We are not persuaded the Examiner erred. Contrary to Appellants’ arguments, Appellants’ Specification describes “de-allocating unused blocks 10 Appeal 2016-002603 Application 12/497,433 in the replica” as part of the final “cleanup” process, and is not part of the mapping process. Spec. 149. As such, we find Appellants’ Specification does not teach or support the teaching that “copied data blocks allocated to unused data blocks” can be de-allocated “while [at the same time] maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range” in the manner recited in Appellants’ claim 7. Nevertheless, to the extent the disputed limitation of Appellants’ claim 7 can be understood in the context of Appellants’ Specification, we agree with the Examiner that a skilled artisan at the time of Appellants’ invention would understand Komarov’s analysis of data allocation on all volumes and removal of unnecessary blocks would necessarily involve “de allocating] a number of the copied data blocks allocated to unused data blocks in said second range while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range,” as recited in claim 7 (emphasis added). For these reasons, we also sustain the Examiner’s obviousness rejection of claim 7 and its dependent claims 8, 10, 11, and 13, which Appellants do not argue separately. App. Br. 15. Independent claim 14 is also similar to claim 1, except for the limitation “copy data blocks from said first range that contain said data files selected for replication Tare copied] to said corresponding data blocks in said second range, while maintaining original offset positions of said blocks in said first range in copied data blocks in said second range” (emphasis added). 11 Appeal 2016-002603 Application 12/497,433 Appellants reiterate the same arguments presented against claim 1, i.e., Komarov’s “blocks that constitute files selected for backup are simply copied to another data storage device without consideration of offsets with those data blocks copied.” Thus, Komarov does not teach or suggest “copying] said data blocks from said first range that contain said data files selected for replication to said corresponding data blocks in said second range while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range,” as recited in claim 14. App. Br. 16—17 (emphasis added). We disagree. For the same reasons discussed relative to claims 1 and 7, and to the extent the disputed limitation of Appellants’ claim 14 can be understood in the context of Appellants’ Specification, we agree with the Examiner that a skilled artisan at the time of Appellants’ invention would understand Komarov’s analysis of data allocation on all volumes and removal of unnecessary blocks would necessarily involve “copying] said data blocks from said first range that contain said data files selected for replication to said corresponding data blocks in said second range while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range,” as recited in claim 14 (emphasis added). For the reasons discussed, we also sustain the Examiner’s obviousness rejection of claim 14 and its dependent claims 15, 18, 19, and 20, which Appellants do not argue separately. App. Br. 17. With respect to Appellants’ arguments presented against claims 6, 9, 17, and 21, we are not persuaded and adopt the Examiner’s findings and explanations provided on pages 6—8 of the Examiner’s Answer. 12 Appeal 2016-002603 Application 12/497,433 OTHER ISSUES In the event of further prosecution of this application, this panel suggests the Examiner consider rejecting claims 1, 2, 4, 6-11, 13—15, and 17—24 under 35 U.S.C. § 112, first paragraph, as lacking written description. In particular, Appellants’ claim 1 recites, inter alia: “removing a number of the copied data blocks representing data not selected for replication while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range.” Similarly, Appellants’ claim 7 recites, inter alia: “de-allocat[ing] a number of the copied data blocks allocated to unused data blocks in said second range while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range.” For the reasons discussed above, Appellants’ Specification does not teach or support the teaching that “copied data blocks representing data not selected for replication” can be removed or de-allocated “while [at the same time] maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range,” in the manner recited in Appellants’ claims 1 and 7. Likewise, Appellants’ Specification does not teach or support the teaching that “data blocks from said first range that contain said data files selected for replication [are copied] to said corresponding data blocks in said second range while maintaining original offset positions of said data blocks in said first range in the copied data blocks in said second range,” as recited in claim 14. As we find no description of the disputed limitations, as discussed, claims 1, 2, 4, 6—11, 13—15, and 17—24, as currently presented, may lack written description support under 35 U.S.C. § 112, first paragraph. 13 Appeal 2016-002603 Application 12/497,433 CONCLUSION On the record before us, we conclude Appellants have not demonstrated the Examiner erred in rejecting claims 1, 2, 4, 6—11, 13—15, and 17—24 under 35 U.S.C. § 103(a). DECISION We AFFIRM the Examiner’s final rejection of claims 1, 2, 4, 6—11, 13-15, and 17-24. No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv). AFFIRMED 14 Copy with citationCopy as parenthetical citation